Another policeman escapes conviction

Tuesday April 03, 2018 Written by Published in Tropical Chronicles

In writing this column, I run the risk of being anti-police. I certainly am not. However, some situations call for public scrutiny.

 

Last Thursday, a police officer who assaulted a family member was discharged without conviction.

As a defence lawyer, I must raise my hat to the officer’s counsel who managed to convince the presiding JP to deliver that decision, which essentially is an acquittal.

In other words, the officer walks away with clean hands. Well, he may have walked away, but are his hands now clean of the offence?

This officer has not been that long in the police force. His colleagues received a complaint that he assaulted someone and upon completing their inquiries, they charged him with assaulting a female. Now, that raises the bar somewhat from a common assault charge. The maximum penalty is for a term of imprisonment not exceeding two years, as opposed to imprisonment not exceeding one year for common assault.

This officer is a young man with a young family and when charged with the offence he was suspended on full pay awaiting prosecution.

He was charged around about October of 2017 and has therefore been a ward of the court for the past six months, appearing at ‘call overs’ and never having entered a plea until very late in the piece. When that happens, there would have been some negotiations between his counsel and Police and Crown Law, the latter taking over the prosecution.

What I am asking here is the same question I asked last week. Is there one law for all or is there a different law for police officers and certain people?

Let me prop that question up with this suggestion. When we say one law for all, we mean that the court will consistently apply court decisions on various areas of the law.

In other words, the Justices of the Peace in our High Court and judges from New Zealand will follow precedents to develop that consistency, unless of course there is a need for a latter case to be distinguished from a previous authority. The order of authority would also be respected – Court of Appeal cases set the authority for the High Court.

However, I am only talking about the practice amongst our JPs. Here’s an example. In an EBA (driving while under the influence of alcohol) case last year, a young man was found guilty after a trial was made necessary when Crown Law, who took over the prosecution, refused to consider a discharge without conviction on the basis that this young man’s career (training to be a pilot) would be shattered if he were convicted.

The young man crashed his car and was blood tested to be over the limit. No-one was hurt in the incident and no-one incurred any costs for it apart from the young man.

As his counsel along with a co-counsel, we were compelled to fight the case to avoid a conviction. The young man was convicted in the end and the matter is now in appeal. With this young man, Crown Law was particularly fastidious and opposed an adjournment application by the young man of his sentencing date because he was in the middle of exams. It was almost a fixation of Crown Law that the young fellow be punished at all costs.

Compare that then with the young police officer I wrote about last week who was discharged without conviction for EBA.

The JP who presided over that case said the young man has a career to protect. A few days after being discharged the young man left the Cook Islands Police for New Zealand. And coincidentally, he was the son of a sitting Member of Parliament. These are facts for you to read into them whatever you like.

When I talked earlier about consistency and precedents, the latter case was clearly a striking departure from the young pilot career case and clearly, the subsequent JP did not adhere to the decision of the court by a different JP.

Let us come back to this recent case of the police officer being discharged without conviction for assaulting a female.

After the officer’s counsel made his submissions and recommended a discharge without conviction, in what I regarded as an astonishing statement, the Crown Law senior counsel stood up to say to the court that the Crown does not oppose the recommendation and a conviction would be a disproportionate penalty to the gravity of the offence.

In essence, that really sealed the case for the JP, but she was being asked to use her discretion given under section 112 of the Criminal Procedure Act 1980-81 and she had options.

She proposed recess, a break in court sitting for her to go into private chambers and we can only guess that she retired either to consult or check precedent in order to come to a decision. That decision was of course a discharge without conviction.

But what about the victim? Apparently, she had requested for the charge to be dropped. That is quite a common thing for women who lay complaints to do – change their mind and request the charge be dropped.

I am sure that the counsellors at Te Punanga Tauturu Inc counselling services would be able to give us a long list of women who were abused and beaten for not withdrawing their complaints after being assaulted by their husbands or partners.

Police have steadfastly claimed it does not have a drop policy and it proceeds with prosecution.

But what about the message to the women of this Cook Islands? That is, a police officer can assault a woman and get away with it.

The hypocrisy of the whole saga however boils down to this. Why pursue the prosecution anyway? Why waste taxpayers’ money? Why put undue stress on those involved, including the defendant? And for it all to end in Crown Law supporting the discharge without conviction recommendation.

Let me ask the question again – is it one law for all or is it different for some people?

- Wilkie Rasmussen

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